Orford Union Congregational Society v. West Congregational Society Of Orford

• Decision Date: 15 June 1875
• Citation: 55 N.H. 463
• Parties: Orford Union Congregational Society v. West Congregational Society Of Orford.
• Court: New Hampshire Supreme Court

55 N.H. 463

Orford Union Congregational Society v. West Congregational Society Of Orford.

Supreme Court of New Hampshire

June 15, 1875

Public charity---Construction of deed---Pleading.

S., by deed, conveyed certain land to the selectmen of the town of Orford by name, and their successors in said trust, for the use of the inhabitants of said town, for the sole and express purpose of aiding and supporting the gospel ministry within the same, "which lot of land is ever to remain to the said inhabitants for the sole use and purpose aforesaid, the rents of which annually shall be expended by the said inhabitants for the support of the gospel as aforesaid, and for none other purpose or uses," with the proviso, that if the inhabitants of the town shall hereafter separate and divide into two separate parishes or societies, in that case the rents and profits arising therefrom shall ever thereafter be appropriated to and for the use and support of the gospel at the meeting-house on the river road in said Orford, for the sole use and benefit of the inhabitants of said river parish or society, under the direction of wardens or other officers that may be appointed from time to time by the inhabitants of said parish or society." "To have and to hold the aforenamed and described premises, with all the appurtenances hereto, unto the aforenamed selectmen and to their successors in office, to and for the several uses and purposes aforesaid, for the said inhabitants, to their use and behoof forever." Held, that the use was executed in the town of Orford, which became trustee for the purposes expressed in the deed.

The plaintiff society was legally organized under the act of 1819, and assisted in supporting preaching, in connection with the church formed in 1770, to the present time. Some difficulties having grown up in this society, a council of neighboring ministers, having been called in 1832 recommended the dividing the Congregational people into two distinct parishes, and in 1832 the defendant society was legally organized under the act of 1827. This society, and a new church formed in connection with it, and of the same faith and order as the old one, built their meeting-houses on the river road, and have maintained stated preaching there ever since, and elected wardens who have served every year. Held, that the defendant society was entitled to the benefit of the trust property, and that it was the duty of the town to permit it to receive the rents and profits.

A bill in chancery having been filed in the superior court for Grafton county, at the July term, 1835, in favor of the present defendants, in relation to this trust, was dismissed. Held, that the attorney-general not having been made a party in that suit, the judgment was not binding.

The two societies having made a compromise in 1838---Held, that no such compromise effected by said societies could be of any force

The court found and reported the following case:

In August, 1770, a church was formed in the town of Oxford which has continued to the present time, in connection with which church the parish or society have supported religious services and worship. Under the law of 1791, authorizing towns to support the ministry by direct taxation, the town of Orford supported the ministry in connection with this church and, so far as appears, there was no other church in the town or parish until after the act of 1819, which repealed the law of 1791, and only authorized religious societies to support the ministry. This church was Congregational in polity, and in doctrine was what is known as orthodox from the beginning, and so continues to the present time. This church had its meeting-house and regular meetings in the centre of the town, at the village now known as Orfordville or East Orford, said village and meeting-house being about three miles east from Connecticut river, and what was then (in the year 1800) and is now known as the river road, which runs north and south through said town near to said river. In the year 1800, one widow Anna Spooner conveyed to the selectmen of the town of Orford, in trust, a lot of land by deed as follows: "Know all men by these presents, that I, Anna Spooner, of Orford, in the county of Grafton and state of New Hampshire, widow, for the consideration of the esteem, affection, and good will that I continue to have for inhabitants of the town of Orford, together with a real desire and wish that part of my real estate shall be appropriated for the use and support of the gospel ministry in the town of Orford aforesaid as an encouragement to the inhabitants to support the same with respectability, and further as an evidence to the inhabitants that I still retain a grateful sense of the respect and attention that has ever been expressed and paid to me by the said inhabitants while a resident among them,---with the small consideration of one dollar to me in hand paid before the delivery hereof, by Nathaniel Rogers, Jeremiah Marston, and Solomon Mann, selectmen for the town of Orford aforesaid, the receipt whereof I do hereby acknowledge, have given, granted, released, conveyed, confirmed, and by these presents give, grant, alien, release, convey, and confirm unto the said Nathaniel, Jeremiah, and Solomon, and to their successors in said trust, for the use of the inhabitants of said town, for the sole and express purpose of aiding in supporting the gospel ministry within the same, one river or fifty-acre lot of land in the town of Orford aforesaid, drawn to the original right of Joshua Lane, Jun'r, numbered fifty-six, which lot of land is ever to remain to the said inhabitants for the sole use and purpose aforesaid, the rents of which, annually, shall be expended by the said inhabitants for the support of the gospel as aforesaid, and for none other purposes or uses. Provided, however, and this deed is given on this express condition, that if the inhabitants of the town shall hereafter separate and divide into

two separate parishes or societies, that in that case the rents and profits arising therefrom shall ever thereafter be appropriated to and for the use and support of the gospel at the meeting-house on the river road in said Orford, for the sole use and benefit of the inhabitants of the said river parish or society, under the directions of wardens or other officers that may be appointed from time to time by the inhabitants of the said parish or society." "To have and to hold the aforenamed and described premises, with all the appurtenances hereto, unto the aforenamed selectmen and to their successors in office, to and for the several uses and purposes aforesaid, for the said inhabitants to their use and behoof forever." This deed was dated July 26, 1800, and was duly executed, witnessed, acknowledged, and recorded.

The plaintiff offered in evidence, from the records of the town, several votes of the town directing the selectmen to lease this lot of land for one year or more at a time. Such votes were passed in 1801--5, and in 1808, 1814, 1815, and 1822, in which last year the town, upon an article in the warrant for that purpose, "Voted unanimously, that it is not expedient to divide the town of Orford into two separate parishes." (Whole number of votes 134.) In 1835, upon an article in the warrant, it was "Voted, that the selectmen divide the money received for the use" of this Spooner lot "equally among all the religious societies formed in this town, as the law prescribes;" and in 1845 the town voted to allow the selectmen to lease a portion of this lot sufficient for a railroad track, by consent of the religious societies in Orford interested.

On April 13, 1820, John Mann and 143 others associated themselves together, and formed the "Orford Union Congregational Society," under the act of 1819. This society was duly and legally organized, and has kept its records and held its annual meetings regularly to the present time. This society has assisted in supporting preaching in connection with the first church, that formed in 1770, to this time. In 1832, one Deacon Dewey, and other members of this church, set up and attended a separate meeting on the river road. Complaints were made of this proceeding, and a council was called for advice of the neighboring ministers, and Rev. Messrs. McKean, Blake, and Wood were present, and the record shows that "the expediency of dividing the Congregational people was laid before the council; also, the matter of grievance against Dea. Dewey, and the other brethren on the river who had taken similar steps with him." The council recommended the dividing of the Congregational people into two distinct parishes, so as to have preaching constantly at the river and also in the central or eastern part of the town; and that this step was exceedingly desirable, and ought to be done in case it can be sustained. The other difficulties were satisfactorily adjusted.

In 1833, James Dayton and forty-six others associated themselves together, and formed the "West Congregational Society in Orford," under the act of 1827. This society was duly and legally organized, and has kept its records and held its annual meetings

regularly to the present time. At the time this society was formed there was a new church also formed in connection with it, but of the same faith and order as the old one. This church and society built their meeting-house on the river road, so called, in said Orford, and have generally maintained stated preaching therein ever since, as has the Union society, in connection with the old church, in their meeting-house at Orfordville. The new society have elected wardens, who have served every year since its formation. The new society immediately took measures to secure the rents of this lot of land, and...